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2015 Supreme(AP) 848
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
P. Naveen Rao, J.
Md. Pasha – Petitioner
Versus
The APSRTC, rep. by its Managing Director and Others – Respondents
Writ Petition No. 5473 of 2012
Decided On : 17-11-2015
For the Petitioner:S.M. Subhan, Advocate.
For the Respondent: A. Ravi Babu, SC for APSRTC.
Headnote:
Employment and service - Extension of sick leave - Petitioner joined service as Welder in year was working in Depot - While so a charge sheet was served on petitioner alleging that has unauthorized absented from duties and caused disruption of services respondent Depot - Charge sheet alleges that petitioner was absented from duties from without any reasonable cause and without any intimation - Disciplinary proceedings ended in imposing punishment of removal from service proceedings - Petitioner contends that petitioner was sick from and since could not recoup from ailment he applied for extension of sick leave and same was submitted to Assistant Engineer Depot - Petitioner was impression that leave was sanctioned - On recovery from ailment when petitioner reported for duty on was not admitted to duty and falsely disciplinary proceedings were initiated - Held, This was modified by Reviewing authority by order - Thus at this stage remitting matter to disciplinary authority to pass final orders on disciplinary action is not in best interest of respondent Corporation as well employee - Employer has to pay all benefits till date and employee has to face ignominy of protracting disciplinary action for no fault of him that too on allegation of absence for days followed by sick leave - This case warrants giving finality to issue of disciplinary action - Considered opinion that while setting aside order of removal as modified by the reviewing authority vide proceedings dated to give quietus to litigation having regard to period of absence of days ends of justice would serve if punishment of withholding of one increment with cumulative effect is imposed which shall operate from date of order of removal - Consequent to modification of punishment all other steps be taken and completed within a period of eight weeks from date of receipt of a copy of this order - Writ Petition allowed (Paras 12 and 13)
1. The petitioner joined service as Welder in the year 1989. He was working in the Korutla Depot. While so, a charge sheet was served on the petitioner alleging that he has unauthorisedly absented from duties and caused disruption of services in the third respondent Depot. The charge sheet alleges that the petitioner was absented from duties from 2.12.2007 to 13.12.2007 without any reasonable cause and without any intimation. The disciplinary proceedings ended in imposing punishment of removal from service vide proceedings dated 19.8.2008. Appeal filed against the said order was rejected by the Appellate Authority vide order dated 20.06.2015. In the review petition filed by the petitioner, the reviewing authority modified the punishment of removal to that of reducing the pay of the petitioner to the minimum of the time scale of regular Welder only for the salary purpose. Aggrieved thereby, this Writ Petition is filed.
2. Heard the learned counsel for petitioner and the learned Standing Counsel for Respondent Corporation. With the consent of learned counsel writ petition is finally disposed of.
3. Learned counsel for the petitioner contends that the petitioner was sick from 17.11.2007 to 1.12.2007 and since he could not recoup from the ailment he applied for extension of sick leave and the same was submitted to the Assistant Engineer (Mechanical), Korutla Depot. The petitioner was under the impression that the leave was sanctioned. On recovery from ailment, when the petitioner reported for duty on 14.12.2007, he was not admitted to duty and falsely disciplinary proceedings were initiated. According to the learned counsel for the petitioner, even assuming that there was no valid application for extension of sick leave, the absence was only for a period of 12 days and for such a short period of absence even the modified punishment is too harsh and disproportionate.
4. Learned counsel appearing for the petitioner further contends that as per the charge sheet, the petitioner was absent from 2.12.2007 to 13.12.2007, whereas while passing order of removal, the disciplinary authority also took into consideration his absence from duty on 1.8.2008 and from 5.8.2008 to 6.8.2008, that is after submission of explanation by the petitioner to the show cause notice on the findings of enquiry officer. Petitioner was not put on notice regarding the subsequent absence from duty. It is illegal to consider subsequent absence while imposing the punishment of removal from service without putting petitioner on notice. Though this contention was specifically urged and the same was also recorded, the reviewing authority has not dealt with the said contention. Learned counsel therefore, submits that the proceedings are vitiated on this ground alone.
5. Learned Standing Counsel appearing for the respondents submits that the petitioner did not submit his extension of sick leave and therefore, his absence from duty from 2.12.2007 to 13.12.2007 was unauthorised and therefore, disciplinary proceedings were validly initiated. Since the absence was un-authorised, such absence resulted in removal from service. While passing order of removal, it is permissible to take into consideration the subsequent conduct of the petitioner; that on account of the absence of the petitioner from the depot, the mechanical work in the depot affected and therefore, his absence was viewed as serious.
6. The points that arise for consideration are:
1. Whether the punishment imposed on petitioner is vitiated on the ground of taking subsequent absence into consideration without affording further opportunity?
2. Whether punishment is excessive and disproportionate?
7. POINT 1:
In paragraph 3 of the affidavit, the petitioner has specifically contended that after the initial period of sick leave, he submitted an application for extension of leave to the Assistant Engineer (Mechanical), Korutla, but the same was suppressed and that the petitioner was under the bona fide impression that his
